O'Brien -v- Recycled Resources Pty Ltd [2000] NSWADT 193

CITATION: O'Brien -v- Recycled Resources Pty Ltd [2000] NSWADT 193 DIVISION: Equal Opportunity Division APPLICANT David O'Brien PARTIES: RESPONDENT Recycled Resources Pty Ltd FILE NUMBER: 001032 HEARING DATES: 07/12/2000, 08/12/2000 SUBMISSIONS CLOSED: 12/08/2000 DATE OF DECISION: 12/12/2000

BEFORE: Ireland G - Judicial Member; Nemeth de Bikal L - Member; Farmer L - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT ORDERS: Application dismissed.

1 The Tribunal, in this matter of Mr O'Brien's complaint has considered the material that has been put before it. I will read the decision, and when the transcript is available I will edit it and then release it. 2 This complaint was made by Mr David O'Brien, the applicant, to the Anti-Discrimination Board on 1 February 1999 in which he claimed discrimination on the grounds of disability. The disability related to an injury to his left leg suffered in a motor accident which required him to use a walking stick for mobility and stability. It was conceded by the respondent that this disability came within the definition of disability in section 4 of the Anti-Discrimination Act (1977) (the Act). 3 The complaint was investigated by the Anti-Discrimination Board. It was unable to have the complaint conciliated and at the request of the applicant the complaint was referred to this Tribunal under section 94(1) of the Act, for inquiry. The respondent conceded that it employed the applicant since 12 October 1998 on a casual basis as a belt picker at its Kurnell site (the site). 4 The applicant was unrepresented before the Tribunal. At the conclusion of the evidence in his final submissions the applicant formulated his claims of discrimination in two propositions each of which if established constitutes a claim of direct discrimination under section 49B(1)(a) of the Act. 49B What constitutes discrimination on the ground of disability (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in the circumstances which are not materially different, the perpetrator treats or would treat a person who does not have such a relative or associate who has that disability. 5 The propositions of the applicant are that the respondent discriminated against him on the ground of his disability: (1) By requiring the applicant to submit a medical certificate as to his fitness to perform his duties to the respondent when other employees were not required to produce a medical certificate; (2) By terminating his employment with the respondent because of his disability in circumstances in which the respondent would not have terminated an employee who did not have that disability. 6 An examination of the report of the President of the Anti-Discrimination Board to the Tribunal which was admitted into evidence shows that it was only the latter proposition that was investigated by the Anti-Discrimination Board and ultimately referred for inquiry by this Tribunal. 7 The applicant had not alleged discrimination by the respondent arising out of the requirement for a medical certificate in his complaint to the Anti-Discrimination Board. In deference to the applicant and his lack of legal assistance and in the absence of an objection by the respondent the Tribunal has also examined that first proposition. The Tribunal is satisfied that the applicant has not established that on the ground of his disability he had been discriminated against by the respondent by requiring the production of a medical certificate. 8 The respondent through its site manager, Mr Reid, and it's managing director, Mr Jackson, requested on several occasions that the applicant produce a medical certificate. The applicant did not provide a certificate to the respondent. He told the respondent that he had been cleared to work by a "Commonwealth doctor" who he described as a doctor employed by the Department of Social Services. 9 Mr Jackson stated that it was the policy of the respondent that if any employee was suffering from a disability which might affect the employee's ability to perform his duties or in performing his duties the injury might be aggravated the employee was required to produce a medical certificate. In January 1999 when Mr McGrath, the driver of the loader on the site, was off work from a back strain, he was required to produce medical confirmation of his fitness to resume duties, albeit in his case on light duties. 10 The applicant referred to the position of Mr Pannett who shared with the applicant the role of belt picker. Mr Pannett worked normally only one day each week. He is an elderly person and wears a hearing aid. It was acknowledged by the respondent that he had not been required to provide a medical certificate as to his fitness in relation to his hearing condition. 11 It is the view of the Tribunal that an employer is entitled to require an employee, as a condition of employment, to satisfy the employer on medical grounds that a pre-existing disability will not be aggravated or further harmed by his employment. 12 It is in the interest both of the employer and the employee that where the working conditions may subject the employee to further injury or harm that the ability of the employee to work without undue exposure to risk of injury or aggravation of injury, is established. It is untenable to suggest that in these circumstances an employer requiring a medical certificate of fitness is subjecting the employee to unfavourable treatment on the ground of the employee's disability. 13 The circumstances of the applicant's employment with the respondent as described later had elements of safety which required careful management and control to avoid undue exposure of its employees to injury. The employer in such circumstances would be irresponsible if it were not satisfied on medical evidence that an employee already suffering a disability would not unduly expose himself or his fellow employees to injury or harm. 14 The alleged discrimination that was investigated by the Anti-Discrimination Board relates to the termination of the employment of the applicant. Initially the applicant stated to the Tribunal that his employment was terminated on 11 January 1999 when the crusher machine was shut down at the direction of Mr Jackson after it became unstable. Mr Jackson stated that when he visited the site on that day to inspect the crusher he noticed for the first time that the applicant was operating the crusher and he told the applicant that he was not able to operate the crusher because of his disability and he should cease that occupation. 15 The crusher was not able to function and Mr Jackson directed that it be shut down for repair for an indefinite period. The closure of the crusher operation brought all work at the site to a stop on that day. Mr Jackson told the applicant and Mr Pannett that they were stood down until work was available for them. Both men were casual employees to whom a period of notice of cessation of employment was not required. 16 The applicant later agreed that his employment was not terminated until 20 January 1999 when Mr Reid, the site manager, told the applicant that his services were no longer required. The Tribunal accepts that the evidence establishes that the applicant's employment was not terminated until 20 January 1999. 17 The evidence also establishes that the applicant first commenced work at the site on 7 July 1998 as a belt picker. At that time he was employed by Rontril Pty Ltd, a company managed by Mr Bill Bodiam. Rontril Pty Ltd contracted with the respondent for the supply of work and labour at the site. This arrangement ceased in early October 1998. For a period thereafter the state manager of the respondent acted as site manager at the Kurnell Plant. 18 On 9 December 1999 Mr Reid was appointed by the respondent as site manager. Mr Reid continues in that role. On 12 October 1998 the applicant transferred from the employment of Rontril Pty Ltd to the employment of the respondent. By 20 December 1998 Mr Reid had completed a review of the operations at the plant and on Monday, 21 December he issued to the employees a document headed "Daily Operator Duty Report". This document contained a short description of the duties of each employee. The description of the applicant and Mr Pannett was "conveyors and screens"; the position of "generator and rubber tyre loader" was applied to Mr McGrath. Mr Terry Hunt's position was described "jaw crusher, magnet number 1 and impact crusher". 19 The applicant denied that he was provided with a copy of this document. Mr Reid was adamant that a copy was given to each employee. The applicant stated that by the 12th of October 1998 his role at the site had materially changed from his role as a belt picker. He stated that he was performing each of the tasks undertaken by employees at the site including repairing machinery, loader operator and operator of the crusher. He stated that his correct classification under the Quarrying Industry (State) Award (the Award) at that time should have been at least Quarry Worker Grade 3 - Advanced Attendant and probably Grade 4 - Quarry Worker Operator. 20 He continued to be classified and paid by the respondent at all times at the lowest level, that is as Quarry Worker Grade 1 - Trainee. After his termination of employment the applicant complained to the Department of Industrial Relations about his alleged undergrading. An inspector of that department investigated the complaint and interviewed the applicant, Mr Jackson and Mr Reid and other employees of the respondent. The inspector in the summary to his report stated: There are conflicting statements from all parties. Recycled Resources is adamant that the complainant worked at other duties purely on his own volition outside of the company's directions. Equally, David O'Brien insists that he was allowed and encouraged to perform duties outside of his role of belt picker and should be regraded accordingly.